Does the Legal Profession have a Civility Problem?

Last week, the Supreme Court of Canada heard arguments in Joseph Peter Paul Groia v. Law Society of Upper Canada, a case that hits close to home for lawyers and paralegals in Ontario. The matter concerns a licensee’s professional duties, specifically the duty of civility.

Civility is enshrined in both the Paralegal Rules of Conduct and the lawyer Rules of Professional conduct. The latter reads,

“A lawyer shall be courteous, civil, and act in good faith to the tribunal and with all persons with whom the lawyer has dealings in the course of litigation.”

Civility is important for a few reasons. Next to police officers, lawyers and paralegals are the public’s main point of contact with the administration of justice; a lawyer or paralegal’s behaviour can positively or negatively impact the public’s perception of their courts, judges, and the law in general. Maintaining public confidence in justice is important in a democratic society.

But civility goes beyond what the public sees. In the courtroom, courtesy and cooperation can help to facilitate a smooth and speedy resolution to the matter. Uncivil behaviour can do the opposite. In this way, civility can impact the client’s ability to get their best shake at justice.

Few people argue that civility isn’t important at all, or that the Law Society should have no say in regulating it. The point of contention is where the Law Society’s authority begins and ends when it comes to enforcing the civility rule.

Namely, does it extend into the courtroom itself?

The Law Society certainly believes so. The commentary under the rule even states,

“Legal contempt of court and the professional obligation outlined here are not identical, and a consistent pattern of rude, provocative, or disruptive conduct by the lawyer, even though unpunished as contempt, might well merit discipline.”

The problem, some argue, is that policing civility in the courtroom puts advocates, especially in criminal defence, into an awkward position. They have a duty to defend represent their clients resolutely, but also to maintain courtesy.

The trial process is adversarial by nature, and it can lead to emotionally heated exchanges – especially if one feels the circumstances call for a direct, less-than-civil response.

That’s the position the plaintiff, Joseph Groia, claims he was in. He represented Bre-X mining chairman John Felderhof in a multi-million dollar fraud trial that went on for years. He sparred with the prosecution at several points, believing the Crown was trying to deny his client a fair trial. In this, he employed sarcasm and colourful language, at one time saying the Crown’s case had more holes than a lobster trap.

Judges in the case noted Groia’s behaviour, and threw him some pointed language in their decisions. The Crown attracted some derision for their behaviour as well. It was a tense and grueling trial, but in the end, Groia succeeded in defending his client, and he was not held in contempt for his actions.

But the Law Society took notice, considering his “zealous advocacy” (an often-repeated phrase in this discussion) to have crossed the line into incivility. Groia has been fighting this determination ever since. Interestingly, he was also elected as a Law Society bencher, showing his significant support within the legal community.

How will the Supreme Court decide? What impact will it have on the legal community, especially criminal defence lawyers and paralegals? We won’t know for a few weeks yet, but licensees are watching with great interest, especially in Ontario. The Supreme Court was packed on the day of the hearing, with hundreds more spectating online.